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EXHIBIT 10.14
CONTINUING UNLIMITED GUARANTY AGREEMENT
WHEREAS, Falconite Equipment, Inc. (hereinafter referred to as
"Borrower") has applied for credit, or is presently indebted or obligated to
Southwest Bank of St. Louis (hereinafter referred to as "Bank"); and
WHEREAS, for the purpose of inducing Bank to extend credit to
Borrower, or to presently refrain from making demand on Borrower or otherwise
pursuing Bank's rights or remedies against Borrower, the undersigned (hereunder
referred to as "Guarantor") agrees to guarantee the prompt payment of the
indebtedness and liabilities of Borrower to Bank in accordance with the terms
and conditions hereinafter set forth.
NOW, THEREFORE, for value received, and in consideration of the
financial accommodations given or to be given or continued to Borrower by Bank
and/or of Bank's presently refraining from making demand on Borrower or
otherwise pursuing Bank's legal remedies against Borrower, and for other good
and valuable consideration to Guarantor moving, the receipt and sufficiency of
which is hereby acknowledged:
1. Guarantor hereby unconditionally guarantees to Bank the prompt
payment when due, whether by acceleration or otherwise, and at all times
thereafter, of any and all indebtedness and obligations of Borrower to Bank,
including extensions, renewals or refundings thereof (and extensions, renewals
or refundings made after any release or termination hereof), whether such be
direct or indirect, liquidated or unliquidated, absolute or contingent, single,
joint, by the entirety or several, now existing or hereafter arising, due or to
become due whether or not originally contracted with Bank, including interests
acquired by Bank through whole or partial assignment of an item which would
have been a Liability if created between Borrower and Bank (hereinafter
collectively referred to as "Liabilities" or, in the singular "Liability").
"Liabilities" or a "Liability" shall also include expenses including attorney's
fees, incurred by Bank in the efforts to collect any Liability or to enforce
the undertakings of Guarantor hereunder. Whenever any such Liabilities shall
become due and remain unpaid, Guarantor will on demand, make prompt payment of
the amount due thereon.
2. Guarantor shall be obligated to make payment in full to Bank in
accordance with the terms and provisions hereof irrespective of the validity,
regularity or enforceability of any instrument or writing evidencing such
Liability or of the Liability itself, and if the Liability is secured, said
obligation of Guarantor to make payment hereunder shall be made irrespective of
the validity, perfection, regularity or enforceability of any instrument or
writing evidencing such security or of the security itself and it shall not be
necessary for Bank to resort to such security before enforcing Guarantor's
liability hereunder. Demand may be made upon Guarantor for the enforcement of
this Guaranty without the necessity of action at any time by Bank against
Borrower or any collateral or to first accelerate the maturity of any
Liabilities. Any action taken by Bank against Borrower, including foreclosure
of any security held by Bank, shall in no event be considered a waiver or
diminishment of any rights against Guarantor under this Guaranty and Bank
shall, at its sole discretion, have the right at any time to discontinue any
action or proceeding against Borrower and require full payment by Guarantor of
the Liabilities together with attorneys' fees, cost of the proceedings and
court costs. It is agreed that a compromise and settlement of any Liability
shall, in no sense, compromise or settle Guarantor's liability hereunder. Bank
may apply any collateral for the Liabilities in such order as it may elect and
without any obligation to account to Guarantor or any of them for the manner or
order of application.
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3. Guarantor does hereby waive presentment of any instrument, demand
for payment, protest and notice of dishonor or nonpayment and Guarantor waives
all rights arising out of any statute now existing or hereafter enacted with
respect to guaranty or suretyship and which may otherwise require Bank at any
time to take legal action against Borrower. Guarantor does hereby waive notice
of the acceptance of this Guaranty and notice of any Liability contracted or
incurred by Borrower.
4. Bank may, from time to time, without the consent of or notice to
Guarantor, change the manner, interest rate, place or terms of payment, and
change or extend the time of payment of, refund, increase, decrease, renew or
alter in any manner any Liability or security therefor, and may, from time to
time, at its own discretion, without the consent of or notice to Guarantor,
exchange, release, surrender, realize upon or otherwise deal with in any manner
and in any order, any collateral pledged or mortgaged to secure any Liability,
without in any way affecting Guarantor's obligation hereunder.
5. The obligations of Guarantor hereunder shall apply to all
Liabilities, including Liabilities, arising on or prior to notice in writing
from any Guarantor that such Guarantor will not be responsible for any further
Liabilities or notice from a Guarantor's personal representative that such
Guarantor has died or been adjudicated incompetent. Any such notice, to be
effective, must be actually received by the Bank. Notwithstanding the giving
of such notice, the obligations of the Guarantors shall continue in full force
and effect as to all Liabilities then existing including those contingent,
unliquidated or not yet accrued and to any Liabilities thereafter arising, to
the extent that Bank may be bound or permitted by contract or otherwise to
create or permit the creation of additional Liabilities including those which
may or might have been contingent, unliquidated or not yet accrued Liabilities
at the time such notice is given. Termination or revocation of this Guaranty
by notice or by operation of law shall affect only the obligations of the
Guarantor for or on behalf of whom such notice is given or as to whom such
event occurs, the obligations of the other Guarantors to continue unabated.
6. Guarantor does hereby give and grant unto Bank, as security for
Guarantor's liability and obligations hereunder, a first lien and security
interest, with full right of setoff, upon any deposit or other account of
Guarantor with Bank and all property of any kind and of whatsoever nature
belonging to Guarantor or in which Guarantor has any right, title or interest
and which, for any purpose, has come into the possession, custody or control of
Bank.
7. Guarantor acknowledges and agrees that it has derived or will
derive a financial advantage from each and every loan, advance, or other
extension of credit and from each and every renewal, extension, modification,
release of collateral, or other relinquishment of legal rights made or granted
or to be granted by the Bank to the Borrower and further represents and
warrants to the Bank that it has full power and authority (corporate or
otherwise) to execute and deliver this Guaranty.
8. This Guaranty shall be understood to be for the benefit of Bank or
for such other person or persons as may from time to time become or be the
holders of the Liabilities; and this Guaranty shall be transferable and
negotiable without notice to Guarantor with the same force and effect and to
the same extent as such Liabilities may be transferable.
9. Guarantor agrees that Guarantor's liability hereunder is several
and independent of any other guaranties at any time in effect with respect to
all or any part of the Liabilities, and that Guarantor's liability hereunder
may be enforced regardless of the existence of any such other guaranty
agreements.
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10. The word "Guarantor," as used herein, shall designate one or more
guarantors. In the event that more than one guarantor is a party to this
Guaranty, the liability of each of the undersigned shall be joint and several,
each of the undersigned to be fully liable hereunder irrespective of the death,
bankruptcy, incapacity or other disqualification of any other of the
undersigned or the Borrower and Bank may proceed against one or less than all
of the undersigned, such proceeding not being deemed an election, the Bank may,
at any time thereafter in the event full payment has not been realized, proceed
against any other of the undersigned. Bank may release any Guarantor hereon or
any other surety, guarantor or Borrower or any collateral or security pledged
by any Guarantor or surety without affecting the liability hereunder of any
Guarantor not released by Bank in writing. This Guaranty Agreement shall be
binding upon Guarantor and upon Guarantor's heirs, executors, personal
representatives, administrators, legal representatives, successors and assigns
and shall likewise be enforceable against any trusts created by Guarantor and
shall inure to the benefit of Bank, its successors and assigns.
11. This Guaranty Agreement shall not supersede any earlier guaranty
of Guarantor or any of them in which Bank has an interest nor shall any later
guaranty of Guarantor or any of them in which Bank has an interest be construed
to supersede this Guaranty. The effect of any earlier, later or other guaranty
shall be cumulative with this Guaranty, whether or not the interests of Bank in
such earlier, later or other guaranty derives from arrangements made directly
with Guarantor or indirectly by way of Bank being a transferee of all or part
of obligations of Borrower guaranteed by Guarantor.
12. In addition to all other collateral and security provided for
herein, this Guaranty shall be secured by all collateral and security
previously, now or hereafter pledged to Bank by Guarantor and any security
previously, now or hereafter granted Bank by Guarantor whether such pledge or
grant of security interest specifically relates to the Liabilities or not.
13. Guarantor agrees that this Guaranty Agreement, and all obligations
hereunder shall remain in full force and effect at all times hereinafter during
the term hereof, notwithstanding any action or undertakings by, or against, the
Bank, or concerning any collateral securing the Liabilities in any proceeding
under any bankruptcy law; including without limitation, matters relating to
valuation of collateral, election or imposition of secured or unsecured claim
status upon claims by the Bank, pursuant to the Bankruptcy Code, or Rules of
Bankruptcy Procedure as may be applicable from time to time. Guarantor
understands and agrees that in the event any payment made by or on behalf of
Borrower respecting any Liability or any portion of any such payment shall at
any time be repaid by the recipient in compliance with an order (whether or not
final) by a court of competent jurisdiction pursuant to any provision of any
bankruptcy law as now existing or hereafter amended or applicable state law,
the Liabilities shall not be deemed to have been paid to the extent of the
repayment so made, the obligations of Guarantor shall continue in full force
and effect and such recipient, whether or not that be Bank, will continue to be
entitled to the full benefits of this Guaranty notwithstanding any release,
termination or return of this Guaranty Agreement. If acceleration of the time
for payment of any amount payable by Borrower to Bank is stayed upon the
insolvency, bankruptcy or reorganization of such Borrower, all such amounts
otherwise subject to acceleration under the terms of the Liabilities shall
nonetheless by payable by Guarantor hereunder forthwith on demand by the Bank.
14. The Bank shall have no obligation to inform Guarantor, and
Guarantor agrees to assume all responsibility for keeping informed as to
Borrower's or other Guarantors financial condition, the possible non-payment
and non-performance of the Liabilities, the obligations of any Guarantor and
all matters relating to any collateral for the Liabilities or for this Guaranty
Agreement. At its option, the Bank may at any time, disclose information
concerning the Borrower or any collateral for the
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Liabilities or this Guaranty Agreement, but such disclosure shall not obligate
the Bank to provide the same information, now or in the future, to all of the
Guarantors or additional information of any kind to Guarantor.
15. Guarantor hereby agrees that no payment of any Liability shall
entitle it by subrogation, indemnification, contribution, reimbursement or
otherwise to any payment by Borrower or by any other guarantor of any Liability
or from or out of any property of Borrower or of any other guarantor of any
Liability until all Liabilities have been paid in full.
16. Guarantor agrees to provide upon request of Bank financial
statements or such other information on Guarantor as Bank shall from time to
time request.
17. This Guaranty Agreement and the rights and obligations of Bank and
Guarantor hereunder shall be governed and construed in accordance with the
internal laws of the State of Missouri.
18. Any indebtedness of Borrower for borrowed money now or hereafter
owed to Guarantor is hereby subordinated in right of payment to the payment of
amounts owing under this Agreement, any evidence of such indebtedness shall be
so marked with an appropriate legend and if a default in the payment of any
amounts owing under this Agreement shall have occurred and be continuing, any
such indebtedness of Borrower owed to Guarantor, if collected or received by
Guarantor, shall be held in trust by Guarantor for Bank and be paid over to
Bank for application in accordance with this Agreement.
19. The liability of Guarantor under this Guaranty Agreement with
respect to the Liabilities shall not exceed the maximum amount of such
Liability that can be hereby incurred without rendering this Guaranty
Agreement, as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer, and not for any
greater amount. For purposes of determining such liability of any Guarantor,
due consideration shall be given to the amount of loan proceeds received,
directly or indirectly, by such Guarantor (whether or not borrowed by such
Guarantor) and the benefits to Guarantor of maintaining an integrated cash
management system.
20. Guarantor hereby irrevocably submits to the jurisdiction of any
State or Federal court sitting in the County or City of St. Louis, Missouri
over any action or proceeding arising out of or relating to this Guaranty, and
Guarantor hereby irrevocably agrees that all claims in respect to such action
or proceeding may be heard and determined in such State or Federal court.
Guarantor hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such action
or proceeding. Guarantor irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing of copies of such
process to Guarantor at its address set forth below. Guarantor agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
21. ORAL AGREEMENTS OR COMMITMENTS TO LEND MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT YOU (GUARANTOR AND US (BANK)
FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY GUARANTOR
AND BANK COVERING SUCH MATTERS ARE CONTAINED IN THIS AGREEMENT, WHICH AGREEMENT
IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
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AGREEMENTS BETWEEN GUARANTOR AND BANK, EXCEPT AS GUARANTOR AND BANK MAY LATER
AGREE IN WRITING TO MODIFY THEM.
IN WITNESS WHEREOF, this instrument has been duly executed by
Guarantor this 31st day of December, 1996.
FALCONITE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx, President
Address:
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
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